Gregory Turley, #N-08083 v. Danny Bedinger

The opinion of the court was delivered by: Michael J. Reagan United States District Judge

MEMORANDUM AND ORDER REAGAN, District Judge: Introduction and Procedural History Plaintiff, an inmate in the Menard Correctional Center, filed the above-captioned lawsuit in this Court in January 2008. On January 3, 2008, Plaintiff moved for leave to proceed in forma pauperis (ifp) herein. The Court granted that motion six days later. On August 14, 2008, however, the Court revoked Plaintiff's ifp status after determining that he already had "three strikes" under 28 U.S.C. § 1915(g). That determination was made using the method of assessing strikes which was employed at that time (counting dismissed claims as well as dismissed actions as strikes). In the Order revoking Plaintiff's ifp status, the Court directed Plaintiff to pay the $350 filing fee within 15 days or face dismissal of his suit. Plaintiff did not do so.

Instead, he appealed the August 14, 2008 Order to the United States Court of Appeals for the Seventh Circuit. Turley prevailed on appeal. In December 2010, the Seventh Circuit reversed this Court's ifp ruling and remanded the case, relying on a November 2010 opinion holding that strikes should be assessed only where the entire action is dismissed under 1915A, instead of when a part of the action is dismissed. See Turley v. Gaetz, 625 F.3d 1005 (7th Cir. 2010). Because Plaintiff did not have three strikes, he was not precluded from bringing this lawsuit.

Upon remand, the Court granted Plaintiff's ifp motion (see Jan. 12, 2011 Order at Doc. 20). Filed under 42 U.S.C. §1983, this action for deprivations of constitutional rights comes now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. §1915A. That statute provides, in pertinent part:

(a) Screening.B The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.B On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaintB

(1) is frivolous, malicious, or fails to state a claim on which relief may be granted; or

(2) seeks monetary relief from a defendant who is immune from such relief.

An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds that some of the claims in the complaint may be dismissed at this point in the litigation.

Facts

On August 19, 2005 Plaintiff was choked and shoved into a wall by Defendant Bedinger after Plaintiff filed a complaint relating to an earlier incident. Bedinger then took Plaintiff to segregation, where he remained for 20 days. This stay in segregation was the result of a conspiracy to retaliate by Defendants Murray, Thomas, Bedinger, Uchtman, Martin, Conder, Ramos, and other John Does. Defendants Ohlau, and J. Cowan were made aware of Plaintiff's placement in segregation, but failed to do anything to correct the situation as an attempt to further the retaliation.

During his stay in segregation, Plaintiff was denied access to his personal belongings as well as recreation periods, which Plaintiff alleges was in retaliation for exercising his right to file grievances. Defendant Kellerhouse held onto Plaintiff's grievances, failing to act on them until they were considered untimely, in retaliation for filing the grievances. On an unspecified date, Defendants Uchtman and Conder further retaliated against Plaintiff by ensuring that he was denied a job assignment for which he had applied.

Around September 30, 2005, Defendants Bedinger, Conder, Ramos, Waller, and McDaniel conspired to retaliate against Plaintiff by moving him to North 1 cellhouse unit, where mentally-ill inmates are housed. This cellhouse has the smallest cells used in the state of Illinois to hold two prisoners, and Plaintiff experienced health problems ranging from joint pain to gastrointestinal issues. Defendants Blagojevich, Walker Jr., Meek, Uchtman, Cox, Martin, Conder, Ohlau, Spiller, Ramos, Waller, McDaniel, Baskins, and other John Does place inmates in these cells knowing the small size and conditions of these cells.

As a member of this cellhouse, Plaintiff was given access to a restricted yard area. Defendants Meek, Uchtman, Martin, Conder, Ohlau, Spiller, Ramos, Waller, McDaniel, and Baskins were aware of the small size of the yard, but continued to allow a large population of inmates to use the yard at the same time.

On April 2, 2007, Plaintiff received a disciplinary report alleging that he and his cellmate missed the opening of their cell door upon returning from supper. The cell doors had not opened as a result of a known malfunction in the system. On April 7th, Plaintiff was seen by the disciplinary hearing board regarding the incident, where Defendant Broshears stated that he needed to further investigate. Four days later, Defendant Broshears found Plaintiff guilty and sent him to segregation, despite there being evidence of Plaintiff's innocence. Sometime thereafter, Plaintiff wrote a letter to Defendant Hulick describing the actions of various Defendants, but that letter was ignored.

Analysis

To facilitate the orderly management of future proceedings in this case, and in accord with the objectives of Federal Rules of Civil Procedure 8(f) and 10(b), the Court will organize the claims in Plaintiff's pro se complaint and related pleadings into numbered counts, as shown below. The parties and the Court will use these designations in all future pleadings and Orders herein, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

Count 1 -- Excessive Force

Plaintiff claims he was subjected to excessive force when Defendant Bedinger choked Plaintiff, then slammed him into a wall. The intentional use of excessive force by prison guards against an inmate without penological justification constitutes cruel and unusual punishment in violation of the Eighth Amendment and is actionable under &sect; 1983. Hudson v. McMillian, 503 U.S. 1, 6-7 (1992); DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 2000). "[W]henever prison officials stand accused of using excessive physical force in violation of the Cruel and Unusual Punishments Clause, the core judicial inquiry is . . . ...

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